Appellate Case: 21-6070 Document: 010110697909 Date Filed: 06/16/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 16, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-6070 (D.C. No. 5:20-CR-00242-PRW-1) DAVID EARL CARPENTER, JR., (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, BALDOCK, and EID, Circuit Judges. _________________________________
This appeal involves the length of Mr. David Earl Carpenter, Jr.’s sentence.
He argues the sentence was substantively unreasonable because it was too long. We
disagree and affirm the sentence.
1. The court sentenced Mr. Carpenter to ten years in prison.
Mr. Carpenter pled guilty to being a felon in possession of a firearm. See
18 U.S.C. § 922(g)(1). The district court sentenced him to ten years’ incarceration,
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-6070 Document: 010110697909 Date Filed: 06/16/2022 Page: 2
which was the statutory maximum term of imprisonment for his offense.
At sentencing the district court calculated Mr. Carpenter’s advisory guideline
in accordance with the presentence report (PSR). The PSR had calculated his base
offense level under U.S.S.G. § 2K2.1(a)(2) to be 24. It then subtracted three levels
for acceptance of responsibility, resulting in a total offense level of 21.
Mr. Carpenter’s lengthy and extensive criminal history resulted in a total criminal
history score of 20, which placed him in criminal history category VI. The resulting
advisory guideline imprisonment range was 77 to 96 months. Neither party objected
to the calculated guideline range. Neither party moved for a departure from that
range.
Mr. Carpenter’s attorney argued at sentencing for a sentence at or near the
bottom of the guideline range. She acknowledged his substantial criminal history but
attributed it to his mental health struggles and the traumatic experiences of his
childhood. She stated he was “in a stable place” on his medications and had “very
positive, pro-social qualities about him.” R., Vol. 3 at 10. She emphasized the
non-violent nature of the § 922(g)(1) offense and claimed he had possessed the gun
for his own protection. She also noted that this was his first federal prosecution and
that he would receive treatment in prison that would give him “something to work
for” and “something to look forward to . . . [e]ven at the bottom end of the
guidelines.” Id. at 12. Once Mr. Carpenter was released, she argued, his probation
officer could help him reinforce the positive, pro-social behavior he could achieve
through the treatment he would receive in prison.
2 Appellate Case: 21-6070 Document: 010110697909 Date Filed: 06/16/2022 Page: 3
For its part, the government emphasized the need to protect the public, arguing
that given his extensive criminal record resulting in many state-court convictions,
“every month that the Court incarcerates [Mr. Carpenter] will be a month when he
would otherwise be committing new crimes.” Id. at 14. In particular, the
government noted his violent conduct when he had domestically abused his
girlfriend.
The district court found that Mr. Carpenter’s case was “primarily about
incapacitation and protecting the public,” because he had “an unbroken line of
criminal conduct beginning from . . . the age of 13,” including “assaults and batteries
and breaking and entering and acquiring deadly weapons,” along with “domestic
abuse” where he “strangled [his] pregnant girlfriend until she passed out,” resulting
in “probably the worst [criminal] record I’ve ever seen.” Id. at 16-17. Given this
history, the district court stated it was “impossible to think about the possession of
the gun in this charge as benign.” Id. at 17. Because his previous “short terms of
[state] incarceration ha[d] done nothing [to improve his behavior] . . . a lengthy term
of incarceration [was] necessary.” Id. The district court varied upwardly 24 months
from the top of the guideline range and sentenced him to 120 months’ incarceration,
to be followed by a three-year term of supervised release.
2. The sentence is substantively reasonable.
Mr. Carpenter argues that despite his extensive criminal history, his ten-year
sentence is substantively unreasonable. We review a challenge to the substantive
reasonableness of a sentence for an abuse of discretion. See Gall v. United States,
3 Appellate Case: 21-6070 Document: 010110697909 Date Filed: 06/16/2022 Page: 4
552 U.S. 38, 51 (2007). In conducting this review, we consider “the totality of the
circumstances, including the extent of any variance from the Guidelines range.” Id.
To determine if the length of a sentence is unreasonable, we examine the
totality of the circumstances “in light of the 18 U.S.C. § 3553(a) factors.” United
States v. Caiba-Antele, 705 F.3d 1162, 1165 (10th Cir. 2012) (internal quotation
marks omitted). Those factors are: (1) the nature and circumstances of the offense
and the history and characteristics of the defendant, (2) the need for a sentence to
reflect the seriousness of the crime, deter future criminal conduct, protect the public,
and provide rehabilitation, (3) the legally available sentences, (4) the U.S. Sentencing
Guidelines, (5) the Sentencing Commission’s policy statements, (6) the need to avoid
unwarranted disparities among sentences, and (7) the need for restitution. See
18 U.S.C. § 3553(a). We reverse only if the resulting sentence was “arbitrary,
capricious, whimsical, or manifestly unreasonable.” United States v. Garcia,
946 F.3d 1191, 1211 (10th Cir. 2020) (internal quotation marks omitted).
In our view, Mr. Carpenter’s ten-year sentence fell within the district court’s
discretion. The district court relied heavily on his extensive and violent criminal
history and the need for a substantial federal sentence both to deter his future
criminal conduct and to protect the public. See United States v. Mateo, 471 F.3d
1162, 1164-66, 1170 (10th Cir. 2006) (affirming substantial reasonableness of district
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Appellate Case: 21-6070 Document: 010110697909 Date Filed: 06/16/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 16, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-6070 (D.C. No. 5:20-CR-00242-PRW-1) DAVID EARL CARPENTER, JR., (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, BALDOCK, and EID, Circuit Judges. _________________________________
This appeal involves the length of Mr. David Earl Carpenter, Jr.’s sentence.
He argues the sentence was substantively unreasonable because it was too long. We
disagree and affirm the sentence.
1. The court sentenced Mr. Carpenter to ten years in prison.
Mr. Carpenter pled guilty to being a felon in possession of a firearm. See
18 U.S.C. § 922(g)(1). The district court sentenced him to ten years’ incarceration,
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-6070 Document: 010110697909 Date Filed: 06/16/2022 Page: 2
which was the statutory maximum term of imprisonment for his offense.
At sentencing the district court calculated Mr. Carpenter’s advisory guideline
in accordance with the presentence report (PSR). The PSR had calculated his base
offense level under U.S.S.G. § 2K2.1(a)(2) to be 24. It then subtracted three levels
for acceptance of responsibility, resulting in a total offense level of 21.
Mr. Carpenter’s lengthy and extensive criminal history resulted in a total criminal
history score of 20, which placed him in criminal history category VI. The resulting
advisory guideline imprisonment range was 77 to 96 months. Neither party objected
to the calculated guideline range. Neither party moved for a departure from that
range.
Mr. Carpenter’s attorney argued at sentencing for a sentence at or near the
bottom of the guideline range. She acknowledged his substantial criminal history but
attributed it to his mental health struggles and the traumatic experiences of his
childhood. She stated he was “in a stable place” on his medications and had “very
positive, pro-social qualities about him.” R., Vol. 3 at 10. She emphasized the
non-violent nature of the § 922(g)(1) offense and claimed he had possessed the gun
for his own protection. She also noted that this was his first federal prosecution and
that he would receive treatment in prison that would give him “something to work
for” and “something to look forward to . . . [e]ven at the bottom end of the
guidelines.” Id. at 12. Once Mr. Carpenter was released, she argued, his probation
officer could help him reinforce the positive, pro-social behavior he could achieve
through the treatment he would receive in prison.
2 Appellate Case: 21-6070 Document: 010110697909 Date Filed: 06/16/2022 Page: 3
For its part, the government emphasized the need to protect the public, arguing
that given his extensive criminal record resulting in many state-court convictions,
“every month that the Court incarcerates [Mr. Carpenter] will be a month when he
would otherwise be committing new crimes.” Id. at 14. In particular, the
government noted his violent conduct when he had domestically abused his
girlfriend.
The district court found that Mr. Carpenter’s case was “primarily about
incapacitation and protecting the public,” because he had “an unbroken line of
criminal conduct beginning from . . . the age of 13,” including “assaults and batteries
and breaking and entering and acquiring deadly weapons,” along with “domestic
abuse” where he “strangled [his] pregnant girlfriend until she passed out,” resulting
in “probably the worst [criminal] record I’ve ever seen.” Id. at 16-17. Given this
history, the district court stated it was “impossible to think about the possession of
the gun in this charge as benign.” Id. at 17. Because his previous “short terms of
[state] incarceration ha[d] done nothing [to improve his behavior] . . . a lengthy term
of incarceration [was] necessary.” Id. The district court varied upwardly 24 months
from the top of the guideline range and sentenced him to 120 months’ incarceration,
to be followed by a three-year term of supervised release.
2. The sentence is substantively reasonable.
Mr. Carpenter argues that despite his extensive criminal history, his ten-year
sentence is substantively unreasonable. We review a challenge to the substantive
reasonableness of a sentence for an abuse of discretion. See Gall v. United States,
3 Appellate Case: 21-6070 Document: 010110697909 Date Filed: 06/16/2022 Page: 4
552 U.S. 38, 51 (2007). In conducting this review, we consider “the totality of the
circumstances, including the extent of any variance from the Guidelines range.” Id.
To determine if the length of a sentence is unreasonable, we examine the
totality of the circumstances “in light of the 18 U.S.C. § 3553(a) factors.” United
States v. Caiba-Antele, 705 F.3d 1162, 1165 (10th Cir. 2012) (internal quotation
marks omitted). Those factors are: (1) the nature and circumstances of the offense
and the history and characteristics of the defendant, (2) the need for a sentence to
reflect the seriousness of the crime, deter future criminal conduct, protect the public,
and provide rehabilitation, (3) the legally available sentences, (4) the U.S. Sentencing
Guidelines, (5) the Sentencing Commission’s policy statements, (6) the need to avoid
unwarranted disparities among sentences, and (7) the need for restitution. See
18 U.S.C. § 3553(a). We reverse only if the resulting sentence was “arbitrary,
capricious, whimsical, or manifestly unreasonable.” United States v. Garcia,
946 F.3d 1191, 1211 (10th Cir. 2020) (internal quotation marks omitted).
In our view, Mr. Carpenter’s ten-year sentence fell within the district court’s
discretion. The district court relied heavily on his extensive and violent criminal
history and the need for a substantial federal sentence both to deter his future
criminal conduct and to protect the public. See United States v. Mateo, 471 F.3d
1162, 1164-66, 1170 (10th Cir. 2006) (affirming substantial reasonableness of district
court’s upward variance from guideline range of 15 to 21 months to the statutory
maximum of 120 months, noting defendant’s “frequent brushes with the law [that]
indicate[d] a commitment to a criminal lifestyle,” the defendant’s “sentences for prior
4 Appellate Case: 21-6070 Document: 010110697909 Date Filed: 06/16/2022 Page: 5
convictions [that] ha[d] not been effective at deterring him from engaging in criminal
behavior[,] and [the fact that] the public require[d] protection from [his]
demonstrated penchant for criminality” (internal quotation marks omitted)).
Mr. Carpenter argues the guideline range already accounted for his criminal
history because the guidelines assigned him a criminal history score of VI. But the
district court could reasonably have considered his unusually extensive criminal
history in reaching its sentencing decision. See United States v. Barnes, 890 F.3d
910, 921 (10th Cir. 2018) (concluding that a district court can justify a variance by
relying on facts that the guidelines had already accounted for).
He also argues the district court failed to explain why a lower sentence, such
as a within-guideline sentence, would not have achieved the purposes of sentencing.
See United States v. Henson, 9 F.4th 1258, 1285 (10th Cir. 2021) (noting “the court’s
chosen sentence must be sufficient, but not greater than necessary, to comply with
the purposes of criminal punishment, as expressed in § 3553(a)(2)” (internal
quotation marks omitted)), petition for cert. filed (U.S. Dec. 28, 2021) (No. 21-6736).
After describing the § 3553(a) factors and noting its review of the sentencing
memorandum and other materials Mr. Carpenter submitted, see R., Vol. 3 at 8-9, the
district court specifically found that a lengthy term of incarceration was necessary,
given his prior, shorter state incarcerations that had failed to improve his behavior or
lead to his rehabilitation. Mr. Carpenter’s prior, adult state-court sentences were for
terms of between one and ten years. See R., Vol. 2 at 11-17. The district court’s
5 Appellate Case: 21-6070 Document: 010110697909 Date Filed: 06/16/2022 Page: 6
stated reasons are sufficient for our meaningful appellate review and adequately
support the extent of the variance.
Finally, counsel argues that “Mr. Carpenter is a unique individual impacted by
adverse childhood experiences with an extensive criminal past including domestic
abuse who struggles with methamphetamine addiction.” Aplt. Opening Br. at 19.
But in reaching its sentencing decision the district court considered both
Mr. Carpenter’s “tough upbringing” and his “drug problem,” and still found that “a
lengthy term of incarceration [was] necessary,” given his failure to improve his
criminal behavior. R., Vol. 3 at 17. See United States v. Lente, 759 F.3d 1149, 1173
(10th Cir. 2014) (“Evidence of childhood trauma, psychological issues, or youthful
indiscretion is most powerful when accompanied by signs of recovery.”).
Giving “due deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance,” Gall, 552 U.S. at 51, we
discern no abuse of discretion here. The ten-year sentence was substantively
reasonable. We therefore affirm the district court’s judgment.
Entered for the Court
Per Curiam